Bill Amendment: IL SB0883 | 2017-2018 | 100th General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: PROBATE ACT-POSTHUMOUS CHILD

Status: 2017-08-11 - Public Act . . . . . . . . . 100-0085 [SB0883 Detail]

Download: Illinois-2017-SB0883-Senate_Amendment_003.html

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Sen. John G. Mulroe

Filed: 3/7/2017

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AMENDMENT TO SENATE BILL 883
AMENDMENT NO. ______. Amend Senate Bill 883 by replacing
everything after the enacting clause with the following:
"Section 5. The Probate Act of 1975 is amended by changing
Section 2-3 as follows:
(755 ILCS 5/2-3) (from Ch. 110 1/2, par. 2-3)
Sec. 2-3. Posthumous child.
(a) For purposes of the descent and distribution of
property passing by intestate succession under this Act, a A
posthumous child of a decedent shall receive the same share of
an estate as if the child had been born in wedlock during the
decedent's lifetime, but only if: (1) the ; provided that such
posthumous child is shall have been in utero at the decedent's
death; or (2) in the case of a posthumous child not in utero at
the decedent's death, the conditions of subsection (b) are met.
(b) A posthumous child of a decedent not in utero at the

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decedent's death meets the requirements of this subsection (b)
only if all of the following conditions apply:
(1) The child is born of the decedent's gametes,
whether those gametes form an embryo before or after the
decedent's death ("gametes").
(2) The child is born within 36 months of the death of
the decedent.
(3) The decedent had provided consent in writing to be
a parent of any child born of such gametes posthumously and
had not revoked the consent prior to death.
(4) The administrator of the estate receives a signed
and acknowledged written notice with a copy of the written
consent attached within 6 months of the date of issuance of
a certificate of the decedent's death or entry of a
judgment determining the fact of the decedent's death,
whichever event occurs first, from a person to whom such
consent applies that:
(i) the decedent's gametes exist;
(ii) the person has the intent to use the gametes
in a manner that could result in a child being born
within 36 months of the death of the decedent; and
(iii) the person has the intent to raise any such
child as his or her child.
The requirements of this subsection impose no duty on the
administrator of an estate to provide notice of death to any
person and apply without regard to when any person receives

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notice of the decedent's death.
(c) For the purpose of determining the property rights of
any person under any instrument, a posthumous child of a
decedent who is in utero at the decedent's death shall be
treated as a child of the decedent unless the intent to exclude
the child is demonstrated by the express terms of the
instrument by clear and convincing evidence.
(d) For the purpose of determining the property rights of
any person under any instrument, a posthumous child of a
decedent not in utero at the decedent's death shall not be
treated as a child of the decedent unless one of the following
conditions applies:
(1) the intent to include the child is demonstrated by
the express terms of the instrument by clear and convincing
evidence; or
(2) the fiduciary or other holder of the property
treated the child as a child of the decedent for purposes
of a division or distribution of property made prior to
January 1, 2018 under the instrument based on a good faith
interpretation of Illinois law regarding the right of the
child to take property under the instrument.
(e) For purposes of subsection (d), the use in the
instrument of terms such as "child", "children", "grandchild",
"grandchildren", "descendants", and "issue", whether or not
modified by phrases such as "biological", "genetic", "born to",
or "of the body" shall not alone constitute clear and

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convincing evidence of an intent to include posthumous children
not in utero at the decedent's death. An intent to exclude
posthumous children not in utero at the decedent's death shall
be presumed with respect to any instrument that does not
address specifically how and when the class of posthumous
children are to be determined with respect to each division or
distribution provided for under the instrument as well as whose
posthumous children are to be included and when a posthumous
child has to be born to be considered a beneficiary with
respect to a particular division or distribution.
(f) No fiduciary or other person shall be liable to any
other person for any action taken or benefit received prior to
the effective date of this amendatory Act of the 100th General
Assembly that was based on a good faith interpretation of
Illinois law regarding the right of posthumous children to take
property by intestate succession or under an instrument. If
after the effective date of this amendatory Act of the 100th
General Assembly the administrator of an estate does not
receive the written notice required by subsection (b), the
administrator of the estate shall not be liable to any
posthumous child not in utero at the decedent's death or any
person claiming for or through the child.
(g) The changes made to subsection (a) of this Section by
this amendatory Act of the 100th General Assembly apply to the
estates of all decedents who die on or after January 1, 2018.
For the purpose of determining the property rights of any

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person under any instrument, the changes made by this
amendatory Act of the 100th General Assembly apply to all
instruments executed before, on, or after the effective date of
this amendatory Act of the 100th General Assembly.
(Source: P.A. 99-85, eff. 1-1-16.)".